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TMI Blog2021 (9) TMI 1140X X X X Extracts X X X X X X X X Extracts X X X X ..... ort Policy /Foreign Trade Policy, or for the purpose of the CMV Act and the Rules thereunder. In the similar facts and circumstances, in LML LIMITED VERSUS COMMISSIONER OF CUSTOMS, BOMBAY [ 1998 (7) TMI 244 - CEGAT, NEW DELHI] , wherein M/s.LML had imported scooters in CKD condition, the Division Bench of this Tribunal had held that Rules of interpretation of tariff and Explanatory Notes to HSN, cannot be applied for the purpose of interpreting the import Trade Policy - there is no legal requirement for production of any Type Approval Certificate for clearance of e-rickshaw in CKD condition, which is applicable only for import of new vehicle(s). Admittedly, the goods in question are freely importable, there being no restriction under the Foreign Trade Policy - The requirement of Type Approval Certificate is not warranted for import of spare parts or kits in CKD condition. The appellant shall not be responsible to pay any warehousing charges, and all such charges, if any, shall be borne by the Customs Department /Government - the appellant is awarded litigation cost of ₹ 50,000/- (to be paid by the Customs Department) - the goods under import, presently lying in w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uery, neither any wattage of Motor was declared in the Bill of Entry by the importer. M/s. K.S. Worth International-Appellant vide letter dated 28.02.2014 to the Deputy Commissioner of Customs, ICD, TKD requested for warehousing of the goods under Section 49 of the Customs Act, 1962 mentioning inter alia, therein that With due regards it is to inform you that our container mentioned above containing E-Rickshaw has arrived at ICD Tughlakabad on 30.12.2013, due to the consignment put on hold by Customs, we are unable to take the delivery of said consignment , alongwith the space available certification of M/s. International Refrigeration Corporation dated 27.02.2014, which was allowed by the competent authority. 4. Whereas as per Rule 2(a) of General Rules for the interpretation (GRIs) of the First Schedule to the Customs Tariff Act (CTA), 1975, provides -- such goods, when imported in CKD condition, are to be treated as the finished article (in the present case Vehicle ), for levy of duty. 5. Whereas as per Rule 2 (u) of Central Motor Vehicle Rules, 1989 (hereinafter referred to as the CMVRs ), 1989 Battery operated vehicle means a vehicle adapted for use upon roads and p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... country of manufacture will also mean a single market like the European Union. b . In addition to the conditions specified in (a) above, the new vehicle shall conform to the provisions of the Motor Vehicles Act, 1988 and the rules made there-under, as applicable, on the date of import. c . Whoever being an importer or dealer in motor vehicles, who imports or offers to import a new vehicle into India shall, (i) At the time of importation, have valid certificate of compliance as per the provisions of Rule 126 of Central Motor Vehicle Rules, (CMVR), 1989 for the vehicle model being imported, issued by any of the testing agencies, specified in the said Rule; (ii) Be responsible for all the provisions assigned to the manufacturer as per Rule, 122 and 138 of CMVR, 1989 and for issuing Form 22, as per provisions of CMVR, 1989; and (iii) Gives an undertaking in writing that the proof of compliance to conformity of production as per Rule 126 A of CMVR shall be submitted within six months of the imports. In case of failure to do so, no further import of new vehicle of that model shall be allowed thereafter. Whereas in the present case, it appears that the power of the E-R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules of Interpretation under Customs Tariff, is not applicable and cannot be made applicable for interpreting the provisions of Import Policy. Though the goods under Import - e-rickshaw in CKD condition as per the said Rules is treated as a complete e-rickshaw for the purpose of levy of customs duty. The said Rule is not applicable for any other purpose, as have been held by the Tribunals and the Higher courts, in the following rulings:- (i) Universal Commercial Corpn. Vs. Collector of Customs, Delhi- 1994 (69) ELT 150 (Tribunal). (ii) S.S. Appliances (P) Ltd. Vs. Collector of Customs, Delhi- 1008 (100) ELT 429 (Tribunal). (iii) Chan Tronix Vs. Commissioner of Customs, Mumbai 2000 (124) ELT 510 (Tribunal) (iv) Union of India Vs. Tarachand Gupta Se. Bros. 1983 (13)ELT 1456 (SC). It was held that when the good were imported as parts, they would merit import as parts, even if the parts and accessories are so comprehensive that if put together would constitute full articles. (Motor Cycle in this case in CKD condition. As parts and accessories of motor cycles and scooters imported in CKD condition will be treated as import of parts and accessories only for all other pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh Enterprises Vs. CCE CC, Noida 2015 (321) ELT 335, wherein this Tribunal held that as per Chapter Note 2(a) of Chapter87 of Customs Tariff, read with Import Export Policy, 2014, new imported vehicles did not include a vehicle, which is manufactured in India or assembled in India. Thus, the import of e-rickshaw parts in CKD condition are required to be assembled in India and hence, cannot be treated as new vehicle. Thus, the requirement (of Type Approval Certificate ) for import of a new vehicle under Rule 126 of MVR read with the Import Export Policy under Rule 14 is not applicable in the facts of the present case.It was further contended that for the purpose of customs duty, the appellant have themselves classified the goods under CTH 87039090 (for a new vehicle), and have paid the duty accordingly. 9.2 The appellant also pointed out, that similar imports in recent past by one J.S. Energy Systems have been cleared by the Customs, in which case the goods were held liable to confiscation due to mis-declaration. A copy of the adjudication order by the Additional Commissioner of Customs dated 11.10.2013, in the case of J.S. Energy Systems, was also annexed for reference. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has urged the aforementioned grounds and Rulings. Further, reliance is placed on the ruling of the Hon ble Delhi High Court delivered on 31.01.2019, in WPC 1232/2018 in Ram Krishna Sales Pvt. Ltd. Vs. Union of India and Ors., wherein under similar facts and circumstances relating to import of e-rickshaw parts in CKD condition, and demand of Type Approval Certificate by the Revenue, vide bill of entry dated 20.12.2017, held that Rule 126 of CMV Rules indicates that it is applicable in respect of a manufacturer or a importer of a motor vehicle, who is required to submit prototype vehicle for testing , as specified by the Testing Agency. Clearly as prototype type approval is not available for parts of a motor vehicle. Admittedly, M/s. R.K. Sales have imported certain parts of an e-rickshaw, which are intended to be sold to the manufacturers etc., and also held that there is merit in the contention of the petitioner that it cannot obtain a type approval certificate under Rule 126 of CMV Rules, since it is not importing a complete motor vehicle, but only certain parts thereof. It is only a manufacturer of motor vehicle, who are required to obtain Type Approval Certificate . 14. F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rts of the e-rickshaw, but it amounts to a complete e-rickshaw in CKD condition. 18. In the written submissions, ld. Departmental Representative stated that the appellant have mentioned in their bill of entry that they have imported e-rickshaw in CKD condition without battery, which is also evident from the invoice of the supplier. Hence, the goods under import have rightly been considered to be a complete article/vehicle for interpretation of Import Policy, as applicable. Further, there is no reference of any Test report. 19. Having considered the rival contentions, I find that the issue is no longer res integra. The applicability of the Rule 2(a) of General Rules of Interpretation read with Chapter 87 of the Customs Tariff, have been held to be not applicable for interpretation of the Import Export Policy or the Foreign Trade Policy, as early as in 1983 by the Hon ble Supreme Court in the case of Union of India Vs. Tara Chand Gupta (supra) and again a constitution bench of the Apex Court in CC Vs. Reliance Industries Ltd. (supra). The show cause notice and the impugned order are in the teeth of the rulings of Apex Court. 20. I hold that e-rickshaw kits in CKD condition i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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